What Is An Uncontested Divorce? – Part 1

We’ve all heard the term “uncontested divorce.” However, the term means different things to different people. Read on, and I will clarify the term as best as I can. I will also offer an alternate theory – that there is no single definition for the term, and that there are many different types of uncontested divorces.

In the most literal sense, an uncontested divorce occurs when both spouses don’t contest thedivorce. But the cause of action for divorce – the dissolution of the marriage – is almost never the issue. As long as one of the spouses meets the residency requirement, there is little the other spouse can do to prevent the dissolution of the marriage. In 17 years of private practice, I have rarely observed a judge deny the actual divorce, as long as the New Jersey court had proper jurisdiction and the plaintiff (one spouse) proved that the defendant (the other spouse) received proper notice.

When most people think of an uncontested divorce, however, they are thinking of everything but the actual divorce, such as custody and visitation, child support, alimony, property, insurance. Everthing comes down to three words: children, support and property. It is a truism that the overwhelming majority of divorce proceedings ultimately result in a settlement, that is, no divorce trial. However, how you get to this settlement is what separates the truly bad divorces from the not-so-bad divorces.

Method #1: The best way to get to the end – a divorce wherein everything is agreed and therefore uncontested – is to negotiate and come to a written agreement before anyone files a divorce complaint in court. You can do on your own, with no lawyers, but I don’t advise it. Other options: a) you and your spouse can jointly hire one attorney to be a mediator; b) each person hires an attorney and all four people negotiate; or c) each person hires an attorney and you all get a third attorney to mediate. In some cases, only one person hires an attorney because the other spouse doesn’t want to; this can work too, especially if there are no children.

Once the agreement is signed by everyone, one of the spouses (through his or her attorney) files the divorce complaint. The complaint alleges “irreconcilable differences” and asks only for two things: the divorce itself, and combining the previously signed agreement into the divorce judgment. The spouses may not even need to appear in court. Once the “filed” complaint and other required documents comes back from the court, the attorney sends everything to the other spouse (or that other spouse’s lawyer) with a request to consent to a divorce judgment “on the papers.”

If everything goes well, the entire process will take only three or four months.

Method #2: Here, one of the spouses won’t negotiate first, or, for other reasons, it would be fruitless to ask. This happens a lot. So one of the spouses files first, the other spouse answers, and the court puts you on a schedule for discovery, mediation, Early Settlement Program, etc. (See this post for a more detailed description of this process and a discussion of how long it takes.) Hopefully both spouses have retained attorneys. The divorcing spouses can come to a settlement at any time during the process. The end result is – you guessed it – an uncontested divorce hearing. The parties have ultimately agreed to everything, even though the process began as a contested divorce, and other court proceedings were needed to push both spouses to this point.

Please recognize that the two methods described above are not discrete; they are just different variations of the same theme. The big difference between #1 and #2 is that the latter starts out as a contested divorce. Similarly Methods #3 and #4, described in Part 2 of “What is an Uncontested Divorce,” are also not separated by bright lines. They will just stay contested for longer – sometimes much longer. But again, tune into Part 2.